Rodney and Willie Phillips v. Lowell Coleman, Progressive County Mutual Insurance Company, and Progressive Casualty Insurance Company (Progressive Insurance Companies)

• Court: Court of Appeals of Texas
• Decided: July 23, 2002
• Docket: 06-02-00044-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-02-00044-CV ______________________________

RODNEY AND WILLIE PHILLIPS, Appellants

V.

LOWELL COLEMAN, PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY, AND PROGRESSIVE CASUALTY INSURANCE COMPANY (PROGRESSIVE INSURANCE COMPANIES), Appellees

---

On Appeal from the 129th Judicial District Court Harris County, Texas Trial Court No. 2001-10130

---

Before Morriss, C.J., Grant and Ross, JJ. Opinion by Justice Ross

O P I N I O N

Rodney and Willie Phillips have filed a notice of appeal from the dismissal of their lawsuit. This case was transferred from the First Court of Appeals to this Court pursuant to a docket equalization order of the Supreme Court of Texas.

According to the notice of appeal, the judgment was signed November 2, 2001. We do not know whether a motion for new trial was filed, but if so, the record was due no later than March 4, 2002. No record has been requested or filed. There is no indication of indigence, and despite letters sent by this Court and by the First Court of Appeals in Houston before transfer, counsel has made no effort to pursue this appeal either by paying filing fees or by taking any other action in this case.

On June 24, 2002, we wrote counsel and warned him that, if he did not cure these defects and take some action in this case within ten days, his appeal would be dismissed for want of prosecution pursuant to Tex. R. App. P. 42.3(b),(c).

Counsel has neither responded nor taken any action in this appeal.

The appeal is dismissed for want of prosecution.

Donald R. Ross

Justice

Date Submitted: July 22, 2002

Date Decided: July 23, 2002

Do Not Publish

ption Locked="false" Priority="9" QFormat="true" Name="heading 7"/>

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00020-CR

                                         CLYDE PHILLIPS, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                       On Appeal from the 114th Judicial District Court

                                                             Smith County, Texas

                                                       Trial Court No. 114-1027-09

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                      MEMORANDUM OPINION

            Clyde Phillips appeals^[1] a trial court’s judgment adjudicating his guilt for possession of a controlled substance and sentencing him to four years’ incarceration.^[2]  In a single point of error, Phillips complains that the trial court’s judgment^[3] “incorrectly reflect[s] that Mr. Phillips entered a plea of ‘true’ to the entirety of the Motion to Adjudicate.”  Phillips argues that although he pled true to several allegations of community supervision violations, he pled “not true” as to one allegation.  He urges this Court to reform the portion of the judgment stating “Plea to Motion to Adjudicate:  True.”  The State has agreed that “the Court has the authority to correct this mistake in the judgment.”  We modify the judgment accordingly.

            The Texas Rules of Appellate Procedure give this Court authority to reform judgments to make the record speak the truth when the matter has been called to our attention by any source.  Tex. R. App. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.).  The record reflects that Phillips pled true to the following allegations in the State’s motion to adjudicate:  commission of the new offense of fleeing from a police officer, change of address without permission, failure to pay court-appointed counsel fees, failure to pay for urinalysis fees, failure to pay monthly supervision fees, failure to pay restitution, failure to pay substance abuse questionnaire fee, and failure to pay Crimestoppers fee.^[4]  However, with respect to the allegation that Phillips attempted to alter or falsify drug test results by “flushing with water,” a plea of not true was entered. 

            We hereby modify the trial court's judgment to reflect Phillips’ plea of “true” to the allegations contained within paragraphs II, III, VII, VIII, IX, X, XI, and XII of the State’s motion to adjudicate and his plea of “not true” to the allegation contained within paragraph VI. 

            As modified, we affirm the trial court’s judgment.

                                                                                    Bailey C. Moseley

Date Submitted:          June 15, 2011 

Date Decided:             June 16, 2011

---

^[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005).  We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.

^[2]Phillips presents a single brief addressing this case and the trial court’s adjudication of guilt for a separate offense of possession of marihuana. The issues and arguments are the same for both convictions, and we reach the same conclusion in both cases.  Please see our opinion of instant date, Phillips v. State, cause number 06–11–00021–CR.

^[3]Phillips does not challenge the sufficiency of the evidence supporting revocation.  A plea of “true” to even one allegation is sufficient to support a judgment revoking community supervision.  Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979).   

^[4]The allegations to which Phillips pled true were contained within paragraphs II, III, VII, VIII, IX, X, XI, and XII in the State’s motion to adjudicate guilt.  The State abandoned allegations contained in paragraphs IV and V.  Phillips pled “not true” to Paragraph VI.